United States: U.S. Government Liable Under CERCLA As Owner For Mining Patent Leases In $1 Billion Environmental Clean-Up

On July 19th, the Tenth Circuit determined that the
U.S. government is liable for environmental contamination at a
mining site operated by Chevron and other mining entities under the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 (CERCLA), 42 U.S.C. §§ 9601 et seq.
Chevron
Mining Inc. v. United States, No. 15-2209, 2017 WL 3045887, at
*1 (10th Cir. July 19, 2017). Anticipated cleanup costs exceed $1
billion. Under the 1872 General Mining Act, 30 U.S.C. § 22,
the U.S. government holds legal title and mining patents or claims
are filed to specific portions of federal property.

The 10th Circuit reversed the District Court of New
Mexico's holding that the U.S. government was not an
"owner" under CERCLA, a decision based largely upon
United States v. Friedland, 152 F. Supp. 2d 1234 (D. Colo.
2001) which held that the United States, as "bare legal title
holder to unpatented mining claims," did not qualify as an
"owner" for purposes of CERCLA liability. See lower
decision at Chevron Mining, Inc. v. United States, 139 F. Supp. 3d
1261, 1276 (D.N.M. 2015). The Tenth Circuit held that
'owner' under CERCLA includes the United States regardless
of the General Mining Act's patent and claim mechanisms. The
court noted that under the General Mining Act, the United States
encouraged and promoted mining activities. The 10th Circuit Court
of Appeals, however, found that the United States is not an
"arranger" under 42 U.S.C. § 9607(a)(3) because it
did not own or possess the hazardous substances disposed of,
affirming the District Court of New Mexico's conclusion.

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